The Question of Damages for Design Patents

Does the system for penalizing infringement of design patents — basically, protections for how things look — need to be examined?

There’s definitely a lot of money at stake: “Unlike every other intellectual property damages scheme, the design patent damages have been interpreted to mean … that if there’s an infringement, the plaintiff gets the entire profits from the infringing article no matter how sure we are that the infringement had no relation to the profits that were made,” said Rebecca Tushnet, a professor at Georgetown University School of Law at a Republic 3.0 panel Tuesday.

For other fields, someone who proves that their profits aren’t related to infringement doesn’t have to hand over those profits, she said.

“That seems out of whack,” she said.

And while a “sufficiently creative court” could say that the definition of infringement needs to be interpreted to include targeting what the infringement was so that profits are awarded from the infringement and not the entire article, it would be better for Congress to provide a legislative clarification, she said.